In Re: Complaint As To The Conduct Of David E. Groom

• Decision Date: 25 March 2011
• Docket Number: OSB 08-105,SC S057898
• Parties: In re: complaint as to the Conduct of DAVID E. GROOM, Accused.
• Court: Oregon Supreme Court

In re: complaint as to the Conduct of DAVID E. GROOM, Accused.

OSB 08-105

SC S057898

SUPREME COURT OF THE STATE OF OREGON

Filed: March 25, 2011

Argued and submitted November 5, 2010.

On review of the decision of a trial panel of the Disciplinary Board.

Wayne Mackeson, Portland, argued the cause and filed the briefs for accused. With him on the briefs was Kelly Jaske, Portland.

Mary A. Cooper, Assistant Disciplinary Counsel, Oregon State Bar, argued the cause and filed the brief for the Oregon State Bar.

Before De Muniz, Chief Justice, and Durham, Balmer, Kistler, Walters, and Linder, Justices.^*

PER CURIAM

The complaint against the accused is dismissed.

PER CURIAM

In this lawyer discipline case, the Bar charged the accused with violating Rule of Professional Conduct (RPC) 1.4, which requires that a lawyer keep a client reasonably informed and explain a matter to a client to the extent reasonably necessary to permit the client to make informed decisions.¹ We conclude that the Bar did not prove that charge by clear and convincing evidence, and we hold that the accused is not guilty of that charge and related charges brought by the Bar and decided by the trial panel.²

The charges against the accused arose from the accused's representation of Richard Eugene Evett (Evett) in the appeal of a circuit court judgment dismissing Evett's petition for a writ of habeas corpus. The Bar alleged that Evett asked the accused to file a motion to vacate that judgment of dismissal and that, although the accused agreed to consider doing so, he neither acted nor informed Evett of his decision not to act. In support of those charges, the Bar proved the facts that follow. Except as otherwise indicated, those facts are uncontested.

Evett was on probation for committing federal crimes when he was arrested on charges of committing additional Oregon crimes. As a result, the federal court revoked Evett's probation and sentenced him to two years in federal prison in Arizona. Evett also was convicted in state court and sentenced to 13 months of incarceration to be served after completion of the federal sentence. To ensure that Evett would return to Oregon to serve that sentence, the state lodged a detainer against him. However, some time later, the state withdrew the detainer and instead issued a warrant for Evett's arrest.

Evett was released from federal prison in March 2003. Approximately two years later, Evett was arrested in California on the Oregon warrant and, after waiving extradition from California, was returned to Oregon. In March 2005, Evett began to serve his 13-month sentence at Snake River Correctional Institute (SRCI).

On May 13, 2005, Evett filed a petition for a writ of habeas corpus in Oregon circuit court, and Charles Simmons was appointed to represent him. In his petition, Evett, through Simmons, alleged that he was unlawfully imprisoned because, among other things, Oregon had lost jurisdiction over him when it withdrew the detainer and then delayed execution of the arrest warrant. The circuit court, which we will refer to as the habeas court, granted the state's motion to dismiss Evett's petition and entered judgment in its favor.³ Evett appealed that judgment, which we will refer to as the habeas judgment, to the Oregon Court of Appeals.

On October 17, 2005, the accused was appointed to represent Evett in his appeal of the habeas judgment. Evett had already served approximately eight months of his 13-month sentence, and the accused warned him that if he was released from state custody before the appeal was decided, the appeal could become moot and the state could seek its dismissal.

Unbeknownst to the accused, while Evett was pursuing his habeas appeal, Evett also was pursuing a parallel civil action seeking money damages for unlawful imprisonment at SRCI. Simmons, the attorney who had represented Evett in bringing the habeas petition, represented Evett in that civil action.

Simmons was concerned about the effect that the habeas judgment could have on the civil action because, to be successful in the civil action, Evett had to prove that his imprisonment at SRCI was unlawful.⁴ However, in dismissing the habeas petition, the habeas court apparently had decided to the contrary--that Evett's imprisonment at SRCI was lawful. Simmons understood that the court in the civil action could decide, applying the rule of issue preclusion, that the decision of the habeas court was binding on it and could not be relitigated. If Evett's appeal of the habeas judgment were successful, the habeas judgment would be reversed and would no longer serve as a potential bar to Evett's civil action. If, however, Evett's appeal were dismissed as moot, the habeas judgment would stand, potentially precluding Evett's claim for money damages. Simmons researched the legal issue and learned of a possible solution to that perceived dilemma. In particular, Simmons learned that if Evett were precluded from pursuing his appeal because it was moot, Evett could seek to have the Court of Appeals vacate the habeas judgment on equitable grounds.

When Evett was released from post-prison supervision on March 23, 2007, Simmons anticipated that the state would file a motion to dismiss the habeas appeal; he therefore contacted the accused to seek his help in obtaining vacatur of the habeas judgment. Simmons initially telephoned the accused and then followed up by e-mail on April 24, writing:

"Thank you for discussing this case with me the other day. As you probably know, I am currently representing Mr. Evett in a civil rights action arising out of the same facts as the habeas corpus appeal in which you are currently representing him.

"It would be helpful if, when DOJ moves to dismiss the appeal as moot, you would request that the Court of Appeals vacate the trial court's decision, based on Kerr v. Bradbury, 340 Or. 241, 131 P.3d 737, adhered to on recons, 341 Or. 200, 140 P.3d 1131 (2006), City of Eugene v. State, PERB, 341 Or. 120, 137 P.3d 1288 (2006), PGE v. IBEW Local 125, 209 Or. App. 77, 146 P.3d 333 (2006), and Arizonans for Official English v. Arizona, 520 U.S. 43, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997). I think there is a good argument to be made under those cases that, because the mootness was not due to any voluntary action by Mr. Evett, but was rather the result of the inevitable expiration of the post-prison supervision term due to the delays normally inherent in litigation, it would be inequitable to require Mr. Evett to be subjected to issue preclusion based on an unreviewed and likely erroneous trial court decision. While this might not make a difference in the habeas corpus case, it is very important to the civil litigation."

A few days later, on April 26, the state filed a motion to dismiss the habeas appeal on the grounds that it had become moot. The deadline for response to that motion was May 10. ORAP 7.05(3) (14-day period for response to motion).

On May 1, 2007, the accused informed Simmons, by e-mail, of the state's motion and that he was considering what response, if any, to make:

"Charles--the motion from the state to dismiss for mootness has just arrived and I am considering what response I might make. I will try to file against this motion, but I fear that the court will rule that habeas relief is a jurisdictional issue, and that his release from any form of custody removes their jurisdiction. I'll keep you posted when I respond."⁵

To consider what response he might make, the accused examined the authorities that Simmons had provided and discussed the issue with his colleagues. The accused determined that Evett had no legal basis for contesting the state's motion to dismiss; the appeal was unquestionably moot. The accused therefore believed that a request for vacatur of the habeas judgment should not be made in opposition to the state's motion but, instead, should be made after the Court of Appeals had ruled on that motion. In the accused's opinion, it would be procedurally appropriate to seek an order of vacatur after entry of an order allowing the motion to dismiss but before the issuance of the appellate judgment, at which time the Court of Appeals would lose jurisdiction. See ORS 19.270(6) (Court of Appeals has jurisdiction until appellate judgment issues). The accused did not file a response to the motion to dismiss, nor did the accused inform Simmons or Evett of his thinking.

On June 5, 2007, after the time for responding to the motion to dismiss had elapsed, Simmons sent the following e-mail to the accused:

"Has the Court of Appeals made any ruling on the motion to dismiss the appeal as moot? Attached is the part of my argument from the civil cases that addresses the issue of vacation of the trial court's decision when the case becomes moot on appeal. I thought this might be of some use to you."

On June 7, 2007, the accused responded, also by e-mail:

"No ruling yet. Thanks for the attachment, I'm in the process of seeing what I can use."

(Emphasis added.) Thus, as of June 7, both Simmons and the accused were aware, or should have been aware, that the time for filing a response to the motion to dismiss had elapsed and that the accused was still "in the process" of thinking about what action he could take.

Simmons claims that he had the following telephone conversation with the accused a week or two later, in mid to late June:

"My best recollection of the conversation is I called him up. I said, 'Hi. Remember me? I'm representing Mr. Evett in a civil case. Did you get my e-mail?' 'Yes, I got your e-mail.' 'Did you go ahead and file the response like we had talked about?' Mr. Groom said, 'Yes.' I said, 'Thank you.' That was the end of the conversation."

The accused denies that any such conversation took place.⁶

In the meantime, the defendants in the civil case had filed a motion for summary judgment arguing, in part, that the habeas judgment precluded relitigation of the lawfulness of Evett's confinement at SRCI. Simmons filed a...